Winning Marijuana Defense – It was NOT Marijuana

If you’re charged with possession of marijuana, it seems straightforward but the Commonwealth does have to prove that the substance they claim you had was in fact marijuana. In many cases this is a straightforward situation. Many clients will admit that it was marijuana when the officer asks them about the substance they find. But if you didn’t admit to the marijuana there may be a defense.

The next way they prove that it was marijuana is by using field tests. In most cases what happens when the officer finds what he suspects to be marijuana is that he performs a field analysis on the substance using a little kit. Basically, if the kit turns the right color that indicates the presence of THC which is the drug in marijuana. However, in order to use that field test in court the officer has to give you a form that notifies you about the field test and tells you that you have the right to have a full chemical analysis done at the state lab in Richmond. If the officer neglects to give you that form or the Commonwealth can’t prove that he gave it to you, then we could try to exclude the field test from evidence.

While it seems like a straightforward piece to prove, it may not be depending on the facts of the case. If the Commonwealth cannot use the field test and all they have is your statement that it was marijuana I would argue that that should lead to a dismissal in court because we don’t know for sure what this substance is.

In some cases the client’s not sure what they have, or maybe it was something that someone else left in the vehicle. In those situations, we may want to have the state lab analyze the substance. The state will analyze the material to determine if there is THC present or not. They’ll issue a certificate to say whether or not the substance was marijuana. If it is marijuana, it really doesn’t hurt us because that’s what they’re already claiming to have found. But if the chemical analysis says it’s NOT marijuana, we’re looking at a victory!

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